ICANN has nothing to hide, and would gladly give Karl Auerbach everything
he asks for, in fact it's offered to make each and every bit of those
records available, but even though it is broke (and the lawsuit will be
very expensive) ICANN will fight his lawsuit to the last dollar. ICANN must fight Auerbach's demand for access to the documents in order to protect the rights of all the Board members to have Board committees pass rules limiting their access to documents to those the management thinks they may see. That, more or less, seems to be ICANN message in its press release on the Auerbach lawsuit, which includes a statement from Board Chairman Vint Cerf
aligning himself with the ICANN management. What neither ICANN nor Dr. Cerf mention is that, if the complaint is to be
believed, ICANN's offer came with some conditions attached. Dave Farber's
list carries
both the ICANN PR effort and Auerbach's reply. Even more interesting is the EFF's setting-the-record-straight reply to ICANN.

Keeping in mind that this isn't my field, and I'm not admitted in
California, from over here at the other side of the country, ICANN's overt
position makes almost no sense. If Auerbach were to violate his fiduciary
duties, it could sue him. There is, though, a less overt position that
(pre-Enron and pre-Lynn Roadmap) might have made some sense. So far as I
can tell, the only legal issue here worth arguing about is whether ICANN
can shelter behind cases that say that corporations can protect
information from a director whom the corporation reasonably believes
intends to use it for a private (usually money-making) purpose unrelated
to or adverse to his duties to the corporation.

Since the money-making cases don't fit here -- clearly, Auerbach isn't doing this for
money -- ICANN will have to try to argue that Auerbach's purposes are
somehow inimical to the corporation, which will presumably involve trying
to make him out to be so bent on destroying ICANN that he would act in
violation of his fiduciary duties. In the ordinary course, while that
might not be a winning argument, it might have had the sort of plausibility
that makes for a triable case. But since what Auerbach has been saying
isn't much worse than the self-criticism in the Lynn paper -- and the
facts set out there suggest there's much for any self-respecting director
to be concerned about....

Not to mention that any court hearing this is going to have to be acutely sensitive to the ways in which management in all other affected corporations theoretically could abuse any privilege to attach conditions to the directors' "absolute" right to inspect and copy documents. I have to feel kinda sorry for the poor lawyer
who's going to have represent ICANN on this one. Especially if there's a doubt as to ICANN's ability to pay the bill....

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1. ICANN doesn't need to drag the dispute out for years, they only have to drag it past the end of Karl's term. The judge can then rule that Karl should have been able to see the records, but as he is no longer a Board member, he won't be given access. BTW, under Lynn's plan, Directors will become Trustees. Does anyone know if, under California law, that will change (IE: degrade) access rights?

2. It won't necessarily mean less for Lous' [sic] law firm, it could mean more for Louis Touton's former law firm Jones Day Reavis Pogue, which I assume is whom you meant. However, as JDRP is presumably mentioned in those financial records, ICANN should arguably use some other law firm for this matter. They should look at using some other law firm anyway, as they appear to be getting terrible legal advice.